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Roderick Macdonald: A mentor to generations of lawyers

Rod Macdonald once tried to promote independent thinking in a group of 300 judges by playing his Gibson Hummingbird guitar and singing a folk song written by Phil Ochs.

Rachel Granofsky

From an early age, Roderick Macdonald set his heart on doing the impossible. And then did it.

After his older brother, Craig, had tried for years to create a hang glider that actually worked – long before the hang-gliding craze started – a teenaged Rod built one (with Craig's help) and flew it off a hill and across a wide field.

He decided to paddle a canoe to the Canadian National Exhibition in Toronto from Camp Kandalore, where he was assistant director, hundreds of kilometres away in central Ontario. At one point he and a friend who accompanied him portaged for nearly 25 kilometres along a highway, one carrying the canoe, the other carrying their packs. In a matter of days, he and the friend reached the CNE.

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Then, although he had never played anything more than touch football, the 6-foot-2 young man tried out to become the first-string quarterback for York University's varsity team under head coach Nobby Wirkowski, formerly the coach of the Toronto Argos. He made it (although he stepped aside once he'd reached his goal, not wanting to risk an injury).

Then he turned that same determined, questing spirit on a career as a law professor.

An anglophone from Toronto, he became a leading expert in Quebec's Civil Code, and the subject of a French-language biography. An unconventional thinker who played old-time protest songs on his guitar, he worked from within the mainstream legal community – as law dean at McGill University, and later as head of the Law Commission of Canada. Prof. Macdonald, who died of cancer on June 13 at the age of 65, never practised law – yet he became internationally recognized for his expertise not merely in one area of law but in a half-dozen or more.

But ultimately, while his ideas and articles have been cited in at least 15 Supreme Court rulings, and while his report on residential schools for the Royal Commission on Aboriginal Peoples helped pave the way for the Canadian government's 2008 apology and compensation, his most pronounced effects on the law may be largely invisible. They are the marks he left as an unusually gifted teacher and mentor to generations of law students who grew up to become practising lawyers, judges, academics and politicians.

The boy who set out to prove anything was possible became a teacher who encouraged his students to prove it, too.

"At heart he had a deeply optimistic conception of human potential and strove to help people realize that potential in all of his interactions," said David Sandomierski, a former student of his at McGill, and his co-author on a paper in which Prof. Macdonald set down some of his most deeply held beliefs about the law.

That same optimism pervaded his view of the law: "He believed that law is a beautiful, powerful human creation that can help us lead better, more just lives," Mr. Sandomierski said. "There is a continuity between how he treated you as an individual and what he believed law's promise was to society."

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Born on Aug. 6, 1948, Rod MacDonald was a middle-class son of a homemaker mother and a civil-engineer father who had been an officer in the Second World War. He was raised in Toronto.

His biographer, Andrée Lajoie, said in an interview that he got his energy "from trying to be noticed. He was a middle child and his parents were more interested in the other children."

Craig Macdonald said his brother sought their mother's approval till her death in 1981, three years before Prof. Macdonald became law dean at McGill, and never felt he obtained it.

Still, Prof. Macdonald's brother and sister had a similar pattern of setting out on arduous quests. Craig, a biologist, spent 20 years creating a historical map of Ontario's Temagami region, featuring the sites of 1,200 portages, and 30 winter snowshoe routes, and all documented with the Anishinaabemowin names – which he learned from interviews with 400 elders. Sandra, their sister, a social worker who used to work with inmates at Toronto's Don Jail, once drove with friends from London to South Africa, then hitchhiked north to Israel.

"Our parents were very adamant that we follow our own heart and our own interests – that whatever it is, just do it," Craig said.

In 1963, Rod had what he would later describe as an epiphany when a young black radical, Stokely Carmichael, visited his high school, York Memorial Collegiate. "His social conscience woke up," said Prof. Lajoie, a professor emeritus in law at the University of Montreal. (Her biography, La Vie Intellectuelle de Roderick Macdonald: Un Engagement, was published in February by Les Éditions Thémis, the University of Montreal law school's publishing arm.)

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A second epiphany came when he worked for the election campaign of federal New Democrat leader David Lewis, and decided "that lawyers could change the world," Prof. Lajoie said.

He had no desire to practise law, but was interested in law as social science and set his sights early on becoming a professor. His studies at Osgoode Hall Law School did not go well, however. "I hated law, I hated my classmates, I thought my professors were egotistical and pretentious," Prof. Lajoie says he told her. Only in his last semester did he achieve good marks.

After earning a degree in common law, he went to the University of Ottawa and earned another undergraduate law degree, this time in civil law. Then he went to a third law school, at the University of Toronto, for his master's degree, and promptly joined the faculty at the University of Windsor Law School in 1975, before moving to McGill in 1979. In 1984, he became the law dean, a position he held for five years. During that time, the school moved to weave Canada's two legal traditions together, rather than have students study them separately.

"He was a bridge between the French and English, the civil law and common law, and fostered that as a mission for the McGill law school," said Nathalie Des Rosiers, the dean of common law at the University of Ottawa law school. McGill's "trans-systemic" or integrated way of teaching common and civil law "is very much due to him."

He became known both for the astonishingly wide range of his scholarship and his commitment to law reform. He could be unconventional – he once attempted to promote independent thinking in a group of 300 judges by playing his Gibson Hummingbird guitar and singing a folk song written by Phil Ochs (the judges gave him a standing ovation) – but governments in Canada frequently sought his advice.

After his term as dean was over, he chaired the Quebec Justice Department's 1991 Task Force on Access to Justice, which led to improvements to legal aid and the civil justice system. He contributed major studies in the mid-1990s to the federal Justice Department's project to harmonize federal legislation with Quebec's Civil Code.

Over the years, he contributed to several royal commissions and inquiries, and served on an advisory panel to the 2007-2008 Bouchard-Taylor Commission on reasonable accommodation of minorities. He was a member of the Charbonneau Commission investigating corruption in the construction industry, though he was not well enough to attend the public hearings. "It's a hackneyed phrase but he was a truly engaged academic," said Stephen Goudge, a retired judge of the Ontario Court of Appeal, who sought Prof. Macdonald's advice before heading a 2007-08 inquiry into wrongful convictions linked to a crusading pathologist. "He cared about the way Canada worked."

From 1997 to 2000, Prof. Macdonald took a leave from McGill to serve as president of the Law Commission of Canada, which produced a study outlining 837 federal statutes that could be amended to treat close personal relationships (including same-sex ones) more fairly.

As a teacher, he had the rare gift of being able to reach each student as an individual. "The amount of time and care he took in really helping people figure out who they are and where they were going was unparalleled," said Mr. Sandomierski, who is now a doctoral student at the University of Toronto's law school.

His influence on the Canadian legal community is woven into its human fabric – the lawyers, judges and academics he taught. "Rod Macdonald was a mentor who helped me develop my interest in helping really vulnerable people," said Jill Presser, a Toronto defence lawyer who works with people caught between the criminal justice and mental health systems.

His teaching could be unconventional. Supreme Court Justice Rosalie Abella co-taught a course with him in jurisprudence. In February, she told a symposium in Prof. Macdonald's honour that he started the first class, set around a seminar table, by asking, "How do you know this is a table?" Two hours of discussion followed on that one question.

Mr. Sandomierski explains Prof. Macdonald's point: "We shouldn't take for granted what we perceive reality to be. That's a very easy thing to say and a very difficult thing to embody when you're dealing with a legal profession that is so traditional and hung up on the current forms and how things currently exist. He was essentially saying everything is up for grabs. Everything you think law is and should be you actually have within yourself."

His opposition to dogma and fixed rules had a powerful influence on his students.

"Here was someone who was obviously very influential, well published, very successful, and he was telling you to subvert the perceived wisdom," Mr. Sandomierski said. "He was able to question the underlying premises of almost every given in our legal system. And do so in a way that was thoroughly consistent with the ideals of the legal system."

"He wasn't the kind to join protest marches," Robert Wolfe, a professor in the School of Policy Studies at Queen's University, said. "It was just always clear where his sympathies lay. Concern for ordinary people. Concern for social justice."

Prof. Macdonald believed that people create law through their own interactions, and legislators just write it down. In this, he drew on the work of Lon Fuller, a U.S. scholar who might otherwise have seemed his political opposite – he was once a speechwriter for Richard Nixon.

"Very often the best way to achieve a harmonious and peaceful society is to recognize people have the capacity to do what is appropriate under the circumstances and that the law should be designed to facilitate their agency, and not simply to control them," Prof. Macdonald told CBC Radio host Paul Kennedy this year.

Explaining why he had never given in to pessimism, Prof. Macdonald cited his experience interviewing former residential-school students who had suffered physical and sexual abuse. "Many of them had been broken down terribly by the experience but were optimistic about their lives and their children and the development of their communities," he told Mr. Kennedy. "And so how can I as a researcher, as a scholar, looking at these terrible events, become a pessimist? If anything, I would be betraying them if I could not translate the same optimism and desire and belief in the possible into the reports we write and the work that I do."

Four years ago, he was told a bump on his neck was cancerous. The cancer later spread to his lungs and the base of his skull. In February, hundreds of former students and colleagues attended a two-day tribute to him at McGill. The outpouring not only of respect but of love and affection was in return for his life of deep generosity, according to Prof. Wolfe, a friend from his Camp Kandalore days.

At that camp, Prof. Wolfe says, a young Rod Macdonald drove campers in a bus, with a canoe trailer hitched behind it, hundreds of kilometres into northwestern Ontario, and then hundreds of kilometres more down a gravel road, toward their destination. And when his friend asked him why he had done it, he offered a simple reply: "Because I wanted them to have a good trip."

Prof. Macdonald leaves his wife, Shelley Freeman, and children, Madeleine and Aidan.

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